Notes
565/2022

Notes

  1. ND 2007 p. 110 SCN an 2007 p. 370 SCN, cf. my Comments in ND 2008 pp. xiv-xvi and ND 2017 pp. xvi-xix, but see HR-2018-1260-A Full City and the discussion thereof in my Comments in ND 2017 pp. xlii-xlv and lxiii-lxv.

  2. The texts of the 1996 Convention and the IMO 1996 Protocol are set out in the Government Bill Ot.prp. nr. 90 (1998-99) pp. 50-63 and pp. 42-49.

  3. Cf. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 14-15, 23 and 41-43.

  4. Cf. Government Bill Ot.prp. nr. 77 (2006-2007) pp. 9 and 11.

  5. Cf. Government Bill Ot.prp. nr. 79(2004-2005) pp.15 and 18.

  6. Cf. Government Bill Ot.prp. nr. 79(2004-2005) pp. 23-26.

  7. Cf. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 14-15, 23 and 41-43. The level of removal and clean-up costs incurred by the State in ND 2017 p. 63 SCN “Server” (HR-2017-331-A) in effect led to a nearly 100 % general increase in the original Norwegian limits in MC 175a for claims in respect of pollution and environment damage applicable to ships of more than 2000 tons, cf. Government Bill Ot.prp. nr. 16 (2008-2009) pp. 7-8.

  8. Government Bill Ot.prp. nr. 77 (2006-2007) pp. 9 and 11, and Government Bill Ot.prp. nr. 16 (2008-2009) pp. 7-8, entailing – as a consequence of ND 2017 p. 63 NSC “Server” (HR-2017-331-A) – a nearly 100 % general increase of the original limits in MC 175a for ships of more than 2000 tons, cf. supra note 7.

  9. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 15, 17, 19, 23 and 41-43.

  10. See my Comments in ND 2017 pp. xxxv-lxv, addressing particularly the problems resulting from the interpretation of the provisions on the establishment and distribution of limitation funds in HR-2018-1260-A (Full City).

  11. Selvig, Limitation of shipowners’ liability and forum shopping in EU/EEA states Simply 2010 pp. 359, at pp. 371-73, cf. my Comments in ND 2008 pp. xxi-xxv.

  12. See my Comments in ND 2017 pp. lxviii-lxxxvi to the numerous decisions involved in these proceedings. Subsequently, LA-2020-99757 (Gard III) decided certain jurisdiction issues left open by HR-2020-1328-A, but the Supreme Court bluntly denied the application for yet another hearing relating to the Gard-case. The message was clear and. eventually, all the Gard cases ended with a multilateral settlement between the owners of the colliding ship and the groups of insurers involved.

  13. Government Bill Ot.prp. nr.13 (1963–1964), jf. Selvig, Rederansvaret, part I and II, in MarIus no. 25 (1977) and MarIus no. 35 (1978), and Government Bill Ot.prp. nr. 32 (1982-83).

  14. Government Bill Ot.prp. nr. 32 (1982–1983) and NOU 1980:55, cf. Ot.prp. nr. 13 (1963–1964), subsequently included in chapters 9 and 12 in a new Maritime Code of 24. June 1994 no. 39.

  15. The 1996 IMO Protocol and the 1976 Convention as amended by the 1996 Protocol are set out in Annex 2 and 3 in Ot.prp. nr. 90 (1998–1999) s. 42 et seq.

  16. Government Bill Ot.prp. nr. 90 (1998–1999) s. 13-19, cf. Government Bill Ot.prp. nr. 79 (2004–2005) pp. 6-8, cf. Rt. 2007 p. 246 (ND 2007 s. 110 NSC) and my Comments in ND 2008 s. xiii-xvi.

  17. Government Bill Ot.prp. nr. 79 (2004–2005) p. 18-19 and 23, cf. infra 2.3 at notes 19 and 20

  18. Government Bill Ot.prp. nr. 79 (2004–2005) p. 11-12, 15, 18-20 and 23.

  19. This two-track approach first appeared in the Report of the Maritime Law Committee in NOU 2002:15 s. 36-40, and constituted subsequently – in somewhat simplified form – the basis for the Government Bill Ot.prp. nr. 79 (2004–2005), cf. pp. 23-29 and 41-42.

  20. Government Bill Ot.prp. nr. 79 (2004–2005) p. 26-29.

  21. Government Bill Ot.prp. nr 79 (2004-2005) p. 41.

  22. Government Bill Ot.prp. nr. 79 (2004–2005) p. 41, cf. p. 23.

  23. Government Bill Ot.prp. nr. 79 (2004–2005) p. 35-36.

  24. Government Bill Ot.prp. nr. 79 (2004–2005) p. 35-36.

  25. ND 2012 p. 394 DSC “Assens Havn”, cf, my Comments I ND 2017 p. lxx-lxxi.

  26. Falkanger & Bull, Sjørett (edition 8, 2016) p. 170 points out liability for cargo damages is subject to limitation, and that it is debatable whether even other types of charterer liabilities may be limited.

  27. ND 2017 p. 63 NSC “Server” where it was held that a manager did not have the role of an owner, even if the management agreement provided for outsourcing of important operational tasks.

  28. Government Bill Ot.prp. nr. 32 (1982-83) p. 23, stating that this applies only to the claims actually subject to limitation according to Article 2, paragraph 1). As pointed out there, this may also include any liability in tort for damage caused during salvage operations by loss-prevention measures as mentioned in Article 2 paragraphs 1 (d), (e) and (f), cf. Falkanger & Bull l.c. p. 170.

  29. Government Bill Ot.prp. nr. 32 (1982-83) p. 26. The provision in Article 3, paragraph (a) exempting “claims for salvage” covers not only salvage awards, but also claims for other compensation payable according to contracts for services rendered in direct connection with salvage operations, cf. Article 2, paragraph 2 second sentence.

  30. Government Bill Ot.prp. nr. 79 (2004-2005) p. 26-27.

  31. Government Bill Ot.prp. nr. 32 (1982-83) p. 25-26 according to which the provision in Article 2, paragraph (f) also applies to claims referred to in Article 2, paragraph 1 (d) and (e).

  32. Government Bill Ot.prp. nr. 32 (1982–1983) p. 26-27.

  33. Government Bill Ot.prp. nr. 79 (2004-2005) p. 26-29 and 41.

  34. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 41 and 44.

  35. Article 2, paragraph 1 (a) does not include the words ”with the operation” of the ship, but it is obvious – when compared to Article 2, paragraph 1 (c) – that this is due to an editorial error, disregarded in MC § 172, paragraph 1 (1).

  36. Government Bill Ot.prp. nr. 79 (2004-2005) p. 41-42.

  37. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 18-19 and 23-26.

  38. Government Bill Ot.prp. nr. 79 (2004-2005) p. 41, pointing out that the interpretation of Article 2 paragraphs 1 (d) and (e) also serves as a “point of departure” when interpreting MC § 172a.

  39. Government Bill Ot.prp. nr. 79 (2004-2005) p. 23 and 41-42, cf. p. 36-29. Solvang, Some reflections concerning the scope of the Maritime Code section 172a, SIMPLY 2016 (MarIus nr. 482) p. 29, at p. 36 and 39-43, apparently, does not take into account this difference in legal character of the treaty-based and the national limitation regimes.

  40. Supra 2.3.3. Government Bill Ot.prp. nr. 79 (2004-2005) p. 42 illustrates this through the discussion of a case of owners’ claim for loss of income due to oil spill on a quay installation preventing use of the quay. The view expressed there is that § 172 applies if loss of income resulted from an oil spill as a “physical” damage to the quay as such, but that § 172a would apply to a claim for loss due to a cleaning up operation of the oil spill preventing use of the quay.

  41. Government Bill Ot.prp. nr. 32 (1982–1983) p. 24-25 and NOU 1980: 55 pp. 15-16, cf. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 41 and 44.

  42. Rt. 1996 p. 1472 NSC, at p. 1476, cf. Hagstrøm & Stenvik, Erstatningsrett (2015) pp. 381-82, 428-30 and 491-99.

  43. The view expressed in Government Bill Ot.prp. nr. 79 (2004-2005) p. 42 is that MC § 172, paragraph 1 (1) applies to claims in respect of property damage and the economic consequences of the property damage.

  44. Government Bill Ot.prp. nr. 79 (2004-2005) pp. 23 and 41-42 and the observations on the “quay” example referred to supra note 40. A decision of 16.11.2021 by the Hordaland district court in the case 21-058354TVI-THOD/TBER (KNM Helge Ingstad) applies this view when distinguishing between the scope of MC §§ 172 and 172a.

  45. Hagstrøm & Stenvik, Erstatningsrett (2015) pp. 50-56, 375-82 and 428-30, cf. In particular Supreme Court decisions in Rt. 1955 p. 872, Rt. 1973 p. 1268, Rt. 1996 s. 1473, Rt. 2006 p. 690 and Rt. 2010 p. 24.

  46. Government Bill Ot.prp. nr. 79 (2004-2005) p. 27-28, cf. supra note 40. See also Hagstrøm & Stenvik, Erstatningsrett (2015) pp. 380-82, cf. 377-78.

  47. ND 2012 p. 245 NLG, cf. my Comments in ND 2014 pp. lxx-lxxi and Falkanger & Bull, Sjørett (8th edition 2016) pp. 211-15.

  48. Government Bill Ot.prp. nr. 77 (2006-2007) pp. 12-14, cf. Falkanger & Bull, l. c. pp. 199-201. In ND 2017 p. 63 NSC “Server” it was held that a manager did not have the role of an owner, even if the management agreement provided for outsourcing of important operational tasks. This is consistent with the observation in Government Bill Ot.prp. nr. 77 (2006-2007) pp. 12-14 that a manager according to the various management agreements regularly used in modern shipping, is ordinarily not a subject of the statutory remedies in PA or PNWA.

  49. Government Bill Ot.prp. nr. 77 (2006-2007) section 3.3 and 4.3, cf. Falkanger & Bull, l. c. pp. 200-201.

  50. The Court’s conclusion relied on the opinion expressed in Government Bill Ot.prp. nr. 79 (2004-2005) p. 26-27. This opinion also defines the relationship between the limitation regimes of the Maritime Code and regulatory orders issued according to the Act on Ports and Navigable Waters §§ 17-18, cf. Government Bill Prop. 86 L (2018-2019) section 8.9.4.

  51. Government Bill Ot.prp. nr. 79 (2004-2005) p. 27-29, cf. Falkanger & Bull l.c. p. 214 and my Comments in ND 2017 pp. xx-xxii, at p. xxiii.

  52. The owner/operator also has strict liability for pollution damage caused to other third parties (PA § 55). An order, according to PNWA § 18, paragraph 4, may also provide for the cover of cost caused to users of ports and navigable waters.

  53. Government Bill Ot.prp. nr. 79 (2004-2005) p. 41.

  54. Government Bill Ot.prp. nr. 79 (2004-2005) p. 41-42, where it is pointed out that a ship may be “sunk, stranded or abandoned” without being a wreck, and also that a ship which can normally be salvaged, cannot be regarded as a wreck.

  55. NOU 2002: 15 pp. 15-16, 38-39 and 40, Government Bill Ot.prp. nr. 79 (2004-2005) pp. 26-29 and 43, Falkanger & Bull, l.c. p. 214, cf. supra 2.3.1 at notes 35 to 40. Moreover, if the claims arise as a consequence of damage to the ship, the public authority or any third party – having no direct interest in the property damaged – may not recover their removal or cleanup costs on the basis of such property damage and its consequences (supra 3.4.1 at note 45).

  56. This question is discussed in Solvang, Some reflections concerning the scope of the Maritime Code section 172a, SIMPLY 2016 (MarIus nr. 482) p. 29, at p. 36 and 39-43.

  57. Government Bill Ot.prp. nr. 32 (1982-83) p. 26. Cf. Falkanger & Bull, l.c. p. 176.

  58. Government Bill Ot.prp. nr. 32 (1982-83) p. 24, cf. supra 3.2.

  59. See My Comments in ND 2017 pp. xxix-xxxiv and lii-lv.

  60. See My Comments in ND 2017 pp. xxiii-xxxv.